Youth Court Judges' Views of the Youth Justice system: The results of a survey

Implementing the Youth Criminal Justice Act

Reducing the number of cases to court

It is clear that most judges - particularly outside of Quebec - believe that many cases could be dealt with "just as adequately or more adequately" outside of the formal court structure. Reducing the number of cases coming to youth court is an explicit purpose of the YCJA. Judges' views of the cases before them would appear to support the legitimacy of this goal. Many judges indicated that they felt that a substantial number of cases could be dealt with just as adequately or more adequately outside of the formal court system.

Estimating the actual number of cases which judges thought could be dealt with as adequately or more adequately outside of the court can be done. However, the results should be interpreted as being an indication of the seriousness of the problem rather than a case-by-case assessment.

Judges answered this question on a five-point scale. Using rough estimates of the numerical meaning of each scale point [54], the average percentage of cases that judges in each province or territory thought could be dealt with as adequately or more adequately outside the court was computed. The translation of these percentage estimates into numbers was straightforward given that we know how many cases are brought to court in each jurisdiction.

Taking the judges' responses at face value (as translated above), the respondents to this survey estimated that 35,874 of the 106,665 cases which were brought to court in 1998-99 (the most recent data available) could have been dealt with as adequately or more adequately outside of the court. This represents 33.6% of the cases.

These findings suggest that it will be important, in the early days of the YCJA, to monitor court intake. Under the YCJA, police officers are required to consider non-court alternatives. If the number (or type of case) going to court does not change, clearly a need exists to address the problem. Among other things, judges might be encouraged to ask police officers (and/or others) about cases that the judge felt would have been best dealt with outside of the court system. The judge does not have any power to order that a case be dealt with elsewhere. Nevertheless, by asking for an explanation, the judge might uncover reasons that could be addressed by others.

Part of the problem, in judges' eyes, is the lack of adequate alternative measures. Clearly, this is administratively outside of the responsibility of the judge. However, judges may be able to find ways of expressing concerns about this "administration of justice" matter either to those in court or to community groups (e.g., youth justice committees).

In any case, from the perspective of the judges, many cases now before the youth courts should not be there. Other decision makers in the various jurisdictions might wish to consider how best to address this problem.

Detention before trial

It appears that in only a minority of cases in which young people are being detained is the issue of a "responsible person" raised in court. The exceptional jurisdiction appears to be British Columbia where approximately three quarters of respondents indicated that, in at least half of the cases in which a youth was detained prior to trial, the issue of finding a "responsible person" with whom the youth could stay was raised. The fact that it is typically raised in B.C. suggests that it could be done elsewhere. The new act requires the judge to raise the issue if it has not already been discussed. Clearly, the issue of searching for a "responsible person" for the youth is not being brought up in court at the moment. Those who are responsible for bail hearings - often Justices of the Peace, in many jurisdictions - need to be made aware of the new section. At a minimum, the data support the value of the modification of this section in the new Act.

The YCJA explicitly forbids the detention of a youth as "a substitute for appropriate child protection, mental health, or other social measures" (Section 29(1)). Accomplishing this will, it seems, be a challenge for the youth justice system in most regions other than Quebec. It is not that detention is being used largely for this purpose. Nevertheless, outside of Quebec, about a third of the respondents indicated that for "half or more" of the youths who were detained, "the detention [was] necessary only because the young person had no adequate place to stay, or for some other child welfare reason."[55] Clearly, detention is, in part, a "child welfare" decision in many cases.

It is interesting that detention is much less likely to be used for this purpose in Quebec. One explanation is that child protection legislation may have been invoked instead of criminal legislation in cases in which the goal was detention for welfare, as opposed to criminal law, purposes. However, in this area, and perhaps others (e.g., reducing the number of cases going into the youth criminal justice system), the challenge of implementation may be considerably less in Quebec since the judges appear to be already acting in a manner that is consistent with the new legislation.

The performance of others

About a quarter of the judges across the country (44% in Ontario) indicated that in only half or fewer of the cases they hear in youth court does "the defence counsel (or duty counsel) appear to be well prepared for the case and well informed about the youth justice system (e.g., the YOA, disposition choices, etc.)" (Question C1). Crown counsel were seen to be more likely to be prepared, perhaps because they are less likely to be "one shot" players. The YCJA represents a dramatic shift from the YOA in the manner in which certain things - sentencing, for example - are carried out.

If ill-informed and/or ill-prepared defence counsel currently exist, this poses a challenge for those responsible for ensuring that the new act is implemented within the spirit in which it was written. Clearly, counsel - defence counsel in particular - need to be educated about the new provisions in the YCJA. The problems that the YCJA is designed to address will be less likely to be resolved if counsel are unaware of the law and have not prepared their cases in light of the new Act.

Close to 40% of the respondents indicated that half or fewer of the sentencing submissions from Crown and defence were helpful. Once again, this is disturbing. Unless performance were to improve, judges would be left almost entirely on their own to determine the most appropriate sentence under the YCJA. Pre-sentence reports, which generally were seen as quite helpful, can provide some help. However, pre-sentence reports are unlikely to be ordered in many cases in which information would be helpful but custody is not being contemplated.

The YCJA requires the judge not only to give a proportionate sentence, but to attempt to give a sentence (within the limits defined by proportionality) that is most likely to rehabilitate and reintegrate the young person. It would seem that the judge should be able to depend on counsel to make useful suggestions regarding the most effective way(s) of fulfilling this requirement of the sentencing process. Presently, many judges are questioning the usefulness of the information which they receive. These findings underline the importance of making efforts to help educate defence (and Crown) counsel about the new Act. Counsel clearly need to know what they can do to ensure that the most appropriate sentences are considered in a legitimate manner by the Court.

Sentencing principles and practice

Under the YCJA, judges are clearly expected to be using a different set of sentencing principles from those available to them under the YOA. When one looks at the overall relative importance attributed to the various factors under the YOA, it would appear that the challenge will be to increase the importance of proportionality and to decrease the importance of individual deterrence and the "protection of the public." Judges would appear to be acting on a relatively "wide open" model of "fitting the sentence to the youth" according to the sentencing theory which appears (to that particular judge) to be appropriate for that specific individual.

The YCJA explicitly mandates a much more prescriptive model in which the individualization of the sentence occurs within the constraint of proportionality. This does not appear to be the way in which judges presently sentence.

The factors that judges indicate are currently being used in determining whether a custodial sentence is appropriate are also at variance with the new legislation. The likelihood of future offending, for example, is, for more than half of the judges, a determinant in all or most cases. Under the YCJA, in which judges are no longer seen as having primary responsibility to prevent crime, education efforts must clearly focus on ensuring that judges understand the fact that sentencing is to be determined by a more structured set of principles than the present menu of purposes.

Social welfare reasons were also mentioned as being relevant by several judges in determining custodial sentences even though section 24 (1.1)(a) of the YOA would appear to preclude using custody as a substitute for appropriate child welfare purposes. Once again, these factors are deemed to be inappropriate as a reason to impose custody under the new YCJA. Clearly, judges are, under the YOA, considering what they see as the "best interests of the child" in determining the sentence. Under the YCJA, the rehabilitative and reintegrative function of the sentence is constrained by the over-riding responsibility to hand down a proportionate sentence.

The YCJA requires a focus on the particular offence before the court in determining the sentence. Thus, it follows that the fact that a non-custodial sentence has been given prior to this offence clearly does not preclude its use again. Section 39(4) of the YCJA explicitly states that non-custodial sanctions can be used more than once. In addition, the YCJA indicates that in determining whether a reasonable alternative to custody exists, the compliance with previous non-custodial sanctions may be seen as evidence that compliance is likely to occur again. However, more than half of the respondents under the YOA saw the failure of non-custodial dispositions to stop offending as a relatively important factor in the decision to hand down a short custodial disposition.

The need for a "short sharp shock" was also seen by a large number of judges as being very important or fairly important. Again, this factor is more or less irrelevant under the YCJA. In order to accomplish the goal of reducing the use of custody, judges will have to internalize these new norms regarding that which constitutes an appropriate sentence.

Administrative and community issues in sentencing

Many judges, particularly those outside of Quebec, indicated that there was an inadequate range of sanctions available to them. Although provinces appear to be required to provide adequate resources to implement one sanction (custody), they do not seem to be required to provide adequate choices on any of the other sanctions listed in the legislation. Programs for specific types of youths were also mentioned by many judges as being in short supply.

Most judges indicated that issues of public opinion were raised by the Crown or others at least occasionally in their court. It would appear that the mention of public opinion was associated with calling attention to the "prevalence" of a particular type of offence in the community. Although the question was not asked directly, one might assume that these two notions were mentioned in a manner suggesting that public opinion required the judge to respond to the perceived or presumed increased prevalence of a particular crime in the community. If such statements are made, it is interesting to note that hard evidence is seldom provided of the increased prevalence (or actual prevalence, increased or not) of the offence. Second, when such statements are made, there is an implicit assumption that the judge is well placed to "fix" the problem. This latter assumption is patently false. Nevertheless, those judges who were most likely to hear, in their courts, about public opinion and/or the prevalence of a crime were slightly more likely to "consider" the impact of public opinion in their decisions. Not surprisingly, those judges who were most likely to indicate that they take prevalence into account were also the same judges who were most likely to rate "general deterrence" as an important factor in determining a sentence. Once again, these findings underline the importance of informing judges of the research demonstrating the inability of judges to reduce crime through harsher sentences.

Probation is the most prevalent disposition under the YOA. Although I know of no data on this issue, informal discussions with various people involved in the youth justice system would suggest that probation services in most locations are unable to provide the kind of help and surveillance that many would like. Part of the problem may be that the length of probation terms appear to be longer than they might be otherwise because of the difficulty in connecting youths with appropriate programs in a timely fashion. Therefore, a more "efficient" (or parsimonious) use of probation services might reduce probation loads to more meaningful levels.

  • [54] Labels were changed into numerical values as follows: all/almost all=90%; most=75%; about half=50%; a few=10%; almost none, none=2%.
  • [55] Question B2.
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